United States Court of Appeals For the Ninth Circuit

No. 14,915

IN THE

United States Court of Appeals
For the Ninth Circuit

‘LORENCE ALICE PAQUET,
Appellant,
¥S.

TNITED STATES OF AMERICA,
Appellee.

On Appeal from the District Court of the United States
for the District of Hawaii.

APPELLANT’S ANSWERING BRIEP.

. P. SOARES,
230 McCandless Building, Honolulu 3, Hawaii,

Attorney for Appellant. F | j_ E 'D)

MAY 24 1956

PAUL P. O’BRIEN, CLERK |

SBNAU-\WALSN PRINTING CO., SAN FRANCISCO, CALIFORNIA

Subject Index

Page
ibit 1.—The certificate of non-existence of citizenship
oS ois eae hea eee i|
nission in evidence of oral and written (Exhibit 6) state-
ents of defendant in nature of confessions ............. 5
Re oe Gs 6 h-5 ss Koa RES Le ea 7

Table of Authorities Cited

Cases Pages
Peomehang v. U.S., 91 F, (2d) 805....... 2.566000 e es 3
craft v. Tennessee, 322 U.S. 145, 88 L.Ed. 1192........ 6
teakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90
OO) USMDG chong ee 2 errr 3,4
nervy. Oklahoma, 322 U.S. 596, 88 L.Ed. 1481........... 6
meecomour ye. >. 167 F. (2d) 431.........0.. 008500. a
PemeemverU os 200) (2d) 493.2... 2.2 6s... es accesce aes 3

Statutes
nigration and Nationality Act, Section 290(d), Act of
une 27, 1952, Section 290(d), 66 Stat. 234; 8 USC, Sec-
col, SOMOS CUI pet apeedia aah aah aaa aaa aera oa 4

No. 14,915
IN THE
United States Court of Appeals
For the Ninth Circuit

ORENCE ALICE PAQUET,

Appellant,
VS.

YITED STATES OF AMERICA,

Appellee.

On Appeal from the District Court of the United States
for the District of Hawaii.

APPELLANT’S ANSWERING BRIEF.

\nswering appellee’s argument in reply to appel-
t’s several claims of error in the Court below, the

owing is respectfully submitted:

i

EXHIBIT 1—THE CERTIFICATE OF NON-EXISTENCE
OF CITIZENSHIP RECORD.

\ppellee treats Exhibit 1 as if it consisted of the
tificate of non-existence of citizenship record only.

Uxhibit 1 is in two parts, namely: (1) a certification
the Assistant Commissioner, Administrative Di-
ion, Immigration and Naturalization Service, E. A.

2

Loughran, (hereinafter, for convenience’s sake, re- } 5

ferred to as the ‘‘Loughran certificate’). (2) A cer-
tificate by the Chief of Records Administration and
Information Branch, in the same service, H. IL.
Hardin.

For convenience’s sake these two certificates to-
gether comprising Exhibit 1 are herein referred to as
the ‘‘Loughran certificate’ and the ‘‘Hardin certifi-
cate’’, respectively.

The Loughran certificate certifies two things:

1. That the attached document (that is, the Hardin
certificate denominated ‘‘Certificate of Non-Existence
of Citizenship Record’’) is from the files of the Immi-
gration and Naturalization Service;

2. That the signature on the aforesaid document is
true and genuine.

Of Loughran’s authority to make the certificate
bearing his signature, appellant raises no question.

The point made by appellant is that however clear
the authority to make it, the certificate made by
‘Loughran is ineffective and being ineffective, the rest
of the exhibit should not have been received in evi-
dence. Appellee nowhere in its brief controverts this
claim. Nor does appellee point out that Loughran
had the eustody of that document to which he certified.
This is a prime requisite.

In connection with appellant’s contention that Ex-
hibit 1, or any part thereof, should not have been
received in evidence, appellee’s argument is limited
to the admissibility of the portion of Exhibit 1 de-

{4

3

minated, Certificate of Non-Existence of Record as
ide by Hardin.

Appellee argues (pp. 13 and 14) that the require-
nt of the statute, the rules, and the regulations on
2 subject that the certificate of non-existence of
cord must contain a statement that the certificate is
ide ‘‘after a diligent search,’’ is complied with he-
use of something which Hardin had in his mind.
ifortunately the law does not give effect to undis-
sed mental reservations. The requirement of all
2 applicable statutes, rules, and regulations is un-
uivocal that not only must there in fact be a diligent
irch before the certificate of non-existence is made,
t that the fact of such a search shall be stated in
e certificate in just so many words.

Appellee argues that substantial prejudice from the
ror complained of does not appear and hence is so
rmless that it is to be disregarded, citing Sang Soon
ry. U.S., 167 F. (2d) 4381; Ah Fook Chang v. U.S.,
F. (2d) 805; Wolcher v. U. S., 200 F. (2d) 493, all
ses decided by this Court, and all remanded for new
al.

In the last of the above listed cases (Wolcher v.
_S.) this Court said:

The rule which we endeavor to apply is stated

in Kotteakos v. United States, 328 U.S. 750, 764;

66 S. Ct. 1239, 1248; 90 L. Ed. 1557: ‘‘Tf, when all

is said and done, the conviction is sure that the

error did not influence the jury, or had but very

slight effect, the verdict should stand, exeept per-

haps where the departure is from a constitutional

norm or a specific command of Congress. * * * But

4

if one cannot say with fair assurance, after pon-.
dering all that happened without stripping the
erroneous action from the whole, that the judg-.
ment was not substantially swayed by the error,
it is impossible to conclude that substantial rights
were not affected. The inquiry cannot be merely
whether there was enough to support the result,
apart from the phase affected by the error. It is
rather, even so, whether the error itself had sub-
stantial influence. If so, or if one is left in grave
doubt, the conviction cannot stand.’’

The gravamen of appellant’s offense is that she
falsely claimed American citizenship. To overcome
this, since appellee’s position is that with a showing
of defendant’s foreign birth, if for no other reason
than to accord her the fundamental and basic right
of the presumption of innocence, it was essential to
establish that she had not been naturalized. The only
proof attempted was in the form of the certificate of
non-existence of a record showing such fact. (Ex. No.
1.)

It is respectfully submitted that the reference in
Section 290 (d) Immigration and Nationality Act, act
of June 27, 1952, Sec. 290 (d), 66 Stat. 234; 8 US@
See. 1860 (d) to a showing of ‘‘diligent search’’, is
just such ‘‘a specific command of Congress’’ that the
Supreme Court of the United States was adverting
to in Kotteakos v. United States, supra.

4)

IT.

\DMISSION IN EVIDENCE OF ORAL AND WRITTEN (EXHIBIT
6) STATEMENTS OF DEFENDANT IN NATURE OF CONFES-
SIONS.

As to appellee’s argument that the admissions com-
lained of ‘‘found their wavy into evidence by respon-
ive answers to questions propounded by appellant,”’
he fact is that the questions propounded by appellant
R. pp. 82-95) were put to him under the circum-
tances recorded on page 81 of the record, to which
ppellee makes no reference in its brief.

As it is brief but nonetheless important, it is here
Bt out:

Mr. Dwight. I will now offer in evidence Plain-
tiff’s Exhibit No. 5 for identification. (Note: This
is the ‘‘Canadian Passport’’).

Mr. Soares. Object to it on the grounds that
it is incompetent, irrelevant and immaterial and
has not been properly identified. And it was taken
from the witness under duress and will only serve
the purpose of getting admissions or confessions
in, and the corpus delicti has not been shown.

The Court. The part of your grounds where
you talk about duress, Mr. Soares, there has been
no foundation laid that there was no duress. Do
you wish to examine the witness on voir dire in
that matter?

Mr. Soares. Yes, if the Court please.

The Court. You may.

It will be noted that defendant’s examination of the
vitness Elms on the basis of whose testimony the
Janadian passport was received in evidence wag con-
ined to the testimony given on direct.

6

Appellee’s statement that, ‘‘The appellant is object-
ing to evidence which was adduced through her own
efforts’? is wholly untenable and is not borne out by
the record.

On the question of admissions and confessions there
are here involved two points, namely: (1) that they
were not voluntarily made, and (2) that they are not
corroborated.

That they were not voluntarily made amply appears.
While no physical violence was offered, defendant did
not have that ‘‘mental freedom’”’ which the Supreme
Court has said a defendant must possess to make the
admissions and confessions admissible. (Ashcraft v.
Tennessee, 322 U.S. 145, 88 L.Ed. 1192; and Lyons v.
Oklahoma, 322 U.S. 596, 88 L.Ed. 1481.)

It is also well-settled that even when admissions and
confessions are otherwise admissible, they cannot be
received as evidence unless corroborated. Despite the
tendency of the Courts to be less stringent as to the
quantum of corroborating evidence, so far as appel-
lant has been able to ascertain no Appellate Court has
ever held that evidence erroneously received may be
used as corroboration.

Teil,

Specification No. 3, claiming error in the refusal of
defendant’s requested instruction No. 18 is withdrawn
at this time.

7

CONCLUSION.
ppellant again respectfully submits that a new
| should be granted.
ated, Honolulu, Hawaii,
May 21, 1956.

Respectfully submitted,
O. P. SOARES,
Attorney for Appellant.